The claimant filed the claim against the respondents, alleging that he was employed as a watchman (security guard), caretaker, gardener, and houseboy (housekeeper) from August 2008. His wage increased from Ksh. 3,000 to Ksh. 20,000 per month, but was not issued a written contract or pay slip.
The claim is that on 28 September 2023, the claimant’s employment was unfairly terminated through summary dismissal. He was not issued a notice or paid his temporary dues, having worked for the respondents for 15 years. He claimed that he was not allowed to take off days, annual leave, or have his statutory dues remitted to the NSSF and NHIF.
The claimant is seeking the following dues:
- 12 months'' compensation Ksh. 23,000 x 12 = 276,000.
- One month''s notice pay Ksh. 23,000.
- Leave days for 15 years, Ksh. 341,500.
- Refund of NHIF Ksh. 90,000.
- Refund of NSSF Ksh. 72,000.
- Service pay for 15 years, Ksh. 172,500.
- Unpaid rest days Ksh. 512,154.
- Public holidays Ksh. 239,760.
- Certificate of service.
- Costs of the suit.
The claimant testified that he has worked for the respondents for 15 years as a caretaker and security guard without a written contract or being issued work records. Initially, he worked for Margaret Gleem''s neighbour and oversaw the premises when they travelled abroad, until Mary, a sister-in-law of the respondents, formally recruited him. He started as a security guard and was added to other duties. He would also collect rent and was allowed to retain Ksh. 20,000 as his payments. His wage would be paid from the rent collected from various tenants.
The claimant testified that he was gardening outside the respondents’ premises and selling flowers. The respondents would be abroad for most of the year.
In 2023, the respondents came back to Kenya for two months. He found another employee had replaced him. He was never paid a house allowance once, was not allowed to take rest days or annual leave, and during all public holidays, he remained at work. He only attended church on Saturday and then resumed his duties.
His claims are justified and should be paid with costs.
In reply, the respondents made mere denials, stating that they had never employed the claimant. There is no evidence to support his alleged employment, and his claims should be dismissed with costs.
Mararet Ateno testified that she knew the claimant for many years, when he worked for her neighbour''s garden. He resigned in 2013 and began taking on casual jobs in the neighbourhood.
Atieno testified that she had Mary take care of her preemies whenever she travelled abroad. Mary would source casuals whenever she required cleaning, gardening and other menial jobs. Each would be paid upon completion of the task. Her daughter, who was at the university, would also secure casual labourers and pay them upon completion of a job. She never hired the claimant as a guard since she did not require one. He had a flower business that he ran near the premises. She had construction work ongoing and asked the claimant to leave the gardening area, which resulted in the current claim.
Atieno testified that she allowed the claimant to collect rent whenever Mary and her daughter were not available. She allowed him to retain a portion in payment. This was not for employment but for the service rendered. For any other casual jobs done, the claim would be paid at the end.
The third respondent, also known as Mary Nyambura, formerly a house help, testified that she would hire the claimant on a need basis for odd and casual jobs at the respondents’ premises. He was not the security guard or caretaker as alleged.
Lorraine Adhiambo testified that she is the daughter of Maraget Atieno and would reside at the subject premises. The claimant was not an employee and was running his gardening and flower businesses adjacent to the premises. She would manage the property when Mary left. Whenever the claimant assisted, he was paid for work done.
Cosmas Kioko testified that she was the driver for the respondents whenever they were in the country. He would pick them up at the airport and drop them at the subject premises. There was no security guard at the premises. The claimant would not be in charge as a caretaker, as alleged. He never found himself doing any work or employment whenever he would pick and the respondents. He would see him attending to his flower business adjacent to the premises. He knew Mary as the respondent''s employee. She would take care of the premises.
At the conclusion of the hearing, both parties submitted written statements.
The issues that need to be determined are whether an employment relationship existed between the parties and whether the reliefs sought should be granted.
To support his case, he claimed and filed various records, including text messages between him and the respondents on his phone. He also filed photos of himself and the respondents. He has filed M-Pesa money transactions between himself and the respondents, as well as with Lorine Adhiambo.
The M-Pesa transaction history shows the amount paid to the claimant from 2017. The only discernible payment is from Lorie Adhiambo and not the respondents.
The payments have no given pattern to suggest a constituent payment of a given sum of Ksh. 3,000 or Ksh. It is alleged that 20,000 is the monthly wage paid by the respondents. The claim of employment is contradicted by the records filed by the claimant and corroborated by the respondents, who state that there was no employment. Furthermore, whenever the claimant was assigned to any task, he was paid at the end.
Indeed, under Section 2 of the Employment Act, a casual employee is defined as one who is engaged in casual employment and is paid at the end of each day.
Section 18 of the Employment Act also permits piece-rate employment, for which the agreed-upon pay is remitted at the end of the arrangement.
In this case, the claimant was cross-examined at length and admitted that the respondent''s neighbour employed him. He was also asked to do gardening for them. He was paid for the work done.
The nature of the employment relationship between the parties was for given tasks, which were paid for at the end of the period. This explains why the claimant did nothing to secure his rights, if any, for the alleged 15 years of service.
The court appreciates current labour dynamics. A person is allowed to hold multiple jobs simultaneously and is paid by different employers. A good example is the claimant. He did gardening for the respondents and their neighbours while attending to his flower business. He was accommodated near the premises for his private business, and he rendered various services to the good neighbours.
The context is thus given of a person rendering a service. Available for service and not employment as defined under the Employment Act as held in Christine Adot Lopeyio v Wycliffe Mwathi Pere [2013] KEELRC 244 (KLR) that;
Under Section 2 of the Employment Act, 2007, ‘contract of service’ is a necessary ingredient in the definition of ‘employer’. As the court’s jurisdiction is open to employees and employers, its jurisdiction is available in both instances of contracts of service and contract for service. In this case, based on this definition and the outlined tests above I note the claimant was not sorely under the control of the respondent as a Care Taker and or agent of his business in rent collection, cleaning of his premises or security.
In this case, the claim of employment and the necessary controlling ingredients are lacking. The claimant does not deny that he was running his private business outside the respondent’s premises. He took the opportunity to make extra money by collecting rent and retaining KSh. 20,000 whenever the chance arose.
The court finds no employment relationship. There is no jurisdiction to hear and determine the matter.
Even where the claims were to be addressed, accrued leave days, rest days, and work during public holidays are defined as continuing injuries that should be addressed within the employment context. As continuing injuries, these should be addressed within 12 months from the date of cessation, as held in See Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye & another [2016] KECA 213 (KLR) and the case of The German School Society & another v Ohany & another [2023] KECA 894 (KLR) that benefits such as allowances in housing, overtime and work hours accrue daily, weekly or monthly and must be addressed within the meaning of a continuing injury under section 90 of the Act.
The claim is that the alleged employment was terminated in September 2023. The claim was filed on 19 February 2025. The lapse in addressing the continuous injury within the provisions of section 90 of the Act renders such claims time-barred.
A certificate of service can only be issued in the context of an employer-employee relationship.
Without proof of an employment relationship, the claim lacks merit and is hereby dismissed, with costs to the respondents.
Delivered in open court at Mombasa, this 30th day of October 2025.
M. MBARŨ
JUDGE
In the presence of:
Court Assistant: Japhet
……………………………………………… and ………………….………………………
'